Abuse: Subpoenas in respect of documents which had been produced on discovery and later reported in a newspaper.

SL v Catholic Diocese of Lismore [2020] NSWSC 1203 (on Caselaw) arose in circumstances where the defendant had issued subpoenas to give evidence and to produce documents (to two lawyers) and a notice to produce (to a law firm). Those lawyers and the law firm had previosuly represented the plaintiff SL.

The subpoenas sought the production of documents described in various ways, including notes, letters and memoranda and email communications, between the recipients of the subpoenas and any journalist working with the Newcastle Herald newspaper (peratining to a named priest and bishop).

The newspaper had published an article which included references to and republications of documents which came from the files of the defendant Diocese and had been provided by the Diocese by way of discovery at a time when the applicants were acting as the solicitors for the plaintiff.

The Motion (by the lawyers and the law firm) sought to have the subpoenas set aside on the basis that no legitimate forensic purpose has been disclosed on the face of the documents. The Diocese submitted that the documents were relevant to the credit and credibility of the plaintiff in a case where, on the evidence they have provided, there is a proper basis for challenging the credit and credibility of the plaintiff.

The Court (at [12]) was satisfied that the documents, which were the source of the article published in the Newcastle Herald, were documents belonging to the Diocese of Lismore that had been disclosed on discovery to the plaintiff SL and to his solicitors.

The Court held (at [17] – [18]) that it is likely that an answer to the subpoenas will contain material relevant to the plaintiff’s credit, saying “If documents are produced, then it will become apparent whether there was communication of a particular kind, to the journalists and/or to the Newcastle Herald, concerning these documents. If that is so, it will also be apparent as to whether the plaintiff has or has not authorised or instructed the solicitors to take such course or, alternatively, expressed a contrary view. The other possibility is that no documents exist in the hands of the applicants and they produce nothing. In that circumstance that answer to the subpoena goes directly to the credibility of the plaintiff who has asserted in various ways that he was not responsible for the transmission of the documents.”

Accordingly the subpoenas were not set aside.